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ANALYSIS OF NOVEMBER 24, 2009 CAV OPINIONS

[Posted November 24, 2009] I was just starting to approach getting caught up from having been away from the office for most of last week, but today, the Court of Appeals pushes my catch-up aspirations aside with four new published opinions.

Domestic relations
When the topic of same-sex marriage comes up in appellate decisions, it occurs to me that the authors of the opinions go to great lengths to clarify one key point. Behold this sentence from today’s opinion in Prashad v. Copeland: “[T]his case is not about homosexual marriage, civil unions, or same-sex relationships.” And here’s one from the CAV’s 2006 ruling in Miller-Jenkins v. Miller-Jenkins: “[W]e do not address whether Virginia law recognizes or endorses same-sex unions entered into in another state or jurisdiction. We do not comment on the constitutionality, viability or breadth of the UCCJEA and the MAA. We do not consider the merits of the rulings of the Vermont court. Those questions are not before us. The issue before us is the narrow one of jurisdiction.”

Given that this is Virginia and not Massachusetts, it is perhaps not surprising that the courts would fall all over themselves taking steps to ensure that their rulings are not misconstrued as a tacit endorsement of anything approaching same-sex marriage. After all, we have a newly-minted constitutional amendment that defines marriage as “a union between one man and one woman,” thereby thwarting not only would-be same-sex couples, but also throwback Mormons. Perhaps it’s appropriate that today’s ruling comes down just as we receive word of Friday’s denouement of the Miller-Jenkins case, where a Vermont judge transferred custody of the child in that case to Janet Jenkins.

This case, too, is about child custody. It arises under the federal Parental Kidnapping Prevention Act. In what must have been a very interesting surrogacy arrangement, Mom was evidently hired to be artificially inseminated simultaneously by two different men, whom we’ll call Dad #1 and Dad #2. A child was thus conceived (I plead guilty to using the passive voice here; but trust me, it’s for a good cause), and upon her birth, she was assigned Dad #2’s surname, and he was listed on the birth certificate as the father.

But Mom wasn’t just a hired incubator; she asked for, and got, the two men’s consent to visit her daughter from time to time in North Carolina, where the two men and the little girl lived. But six months later, the relationship went downhill, and when Mom and her husband – oh, did I neglect to tell you that she was married? – came to the Tar Heel state to claim the child, there was a confrontation, followed by the men’s decision to bar all further contact between the little girl and Mom.

The men then traveled to California, where they filed something called a Declaration of Domestic Partnership. That being done, they then returned to North Carolina, and then moved to Virginia.

Mom, undeterred, filed a custody petition in North Carolina. That court took jurisdiction over the case, and directed the two men to submit to paternity testing. Wouldn’t you know it? Dad #2 turns out to be the proud papa after all. After this discovery, the parties apparently reconciled, and the court entered a consent order giving the Domestic Partners primary custody and Mom secondary custody.

Now, if this had all ended peacefully, you know we wouldn’t have an appeal to talk about. Over a year after the peace accord, Mom filed a petition in Fairfax seeking registration of part (but not all) of the NC order, plus a separate petition seeking modification of the order. She also asked for immediate custody of her daughter. The trial court agreed to register the order, but did so in full. The court apparently did not act on the modification petition.

Mom appealed the final order in the registration petition. Today, a majority of a panel on the CAV affirms, holding that Mom’s various challenges to the Carolina order are technically or analytically flawed. It rejects challenges based on the federal Defense of Marriage Act, our brand-new constitutional amendment, and the Virginia Marriage Affirmation Act. The majority rules that this is merely a case about the registration of a valid North Carolina decree, and that the Full Faith and Credit Clause compels Virginia courts to respect that decree.

Judge Beales dissents, arguing that the judgment appealed from isn’t final. He regards the two petitions as essentially inseparable, so the fact that the modification petition was still unadjudicated meant that the registration order wasn’t final; there was still much for the trial court to do on the issues at stake in the case. The majority responds with a full-page footnote (and since it’s single-spaced, that makes it a two-page reply) in which it points out that the Uniform Child Custody Jurisdiction Enforcement Act regards registration petitions as separate from modification requests. (I don’t practice much in this field, so I was led to wonder how the UCCJEA got into this picture. I thought this was a Parental Kidnapping Prevention Act case, and neither opinion explains why the UCCJEA is relevant to this analysis.)

The finality and jurisdiction analysis make this case well worth review for the insight into the court’s thinking on these key issues.

A second cousin of Alexander the Great, who hoped to reestablish Alexander’s empire after the great conqueror’s death, famously led about 40,000 Greek allies against a roughly equal number of Roman soldiers at the Battle of Asculum in 279 BCE. The Greeks won a tactical victory, but at a great cost. The Greek commander, King Pyrrhus, then seared his name into our language by musing, “Another such victory and we are undone.” A litigant gets such a Pyrrhic victory today in Shiembob v. Shiembob, which relates to equitable distribution.

The husband unquestionably “prevails” in this decision; he secures reversal of a trial court’s ruling that certain shares of stock were marital property (the reversal is because the vesting dates for the shares came after the date of separation). He also gets a remand of another ruling that had classified his repayment of $37K to his wife as a gift, therefore making it her separate property. (The remand only directs the trial court to explain its ruling more fully.) He also fends off the wife’s request for appellate attorney’s fees, and he loses a couple of ancillary arguments relating to the confidentiality of certain documents. On balance, he wins.

But the last set of issues (confidentiality) contains the seed for my classification of this as a Pyrrhic victory for husband. You see, he’s a licensed financial advisor, and many of the factual findings that form the basis for this appeal can easily be read as indictments of his investment acumen, and maybe even his integrity. For example, the opinion notes that he got access to his wife’s pre-marriage investment account, and without her knowledge, started making stock trades with it. The fund started with almost $62,000 in it, but by the time the husband had finished trying to augment that figure, the account value was down to $1,500. In case you think that this was due to the 2008 stock market drop, think again; the jig was up on this escapade when the wife discovered it in 2001.

Now, I am not about to criticize another person’s performance of the discretionary aspects of his profession. But an investment advisor who finds his name in a published opinion, attached to a rate of return of -97.5%, is probably going to have an awfully hard time finding and retaining new clients. The revelation that he did this (and more, such as joining a country club, running up five figures of credit-card debt, and setting up a PO Box) in secret is not, in my view, likely to inspire confidence in him.

I hasten to add that today’s opinion recites the facts in the light most favorable to the wife, since she won below. No doubt the husband disputed some of these facts, so I don’t have his version of the story, which might theoretically be much more benign. But in my opinion, the damage to his reputation (and, necessarily, his career) is done; this is a published opinion, and his name will permanently be as much a part of our caselaw as Pyrrhus’s name is part of our vocabulary.

This is one of those domestic-relations decisions that so often lead me to pick up the phone and call my wife, to reassure her that I love her. This time, I’ll add that I don’t have any secret PO Boxes or country-club memberships. This addition will likely give her some concern about my sanity; but I’ll do it anyway.

Workers’ compensation
I recall reading about some 2,000-year-old seeds that archaeologists once found in an excavation at Masada. Somehow, the seeds retained the spark of life all this time, so that when planted and watered, they germinated and produced a living plant – a date tree, I think. Workers’ comp claims, we learn today in Jones v. US Senate FCU, don’t have that long a shelf life.

Jones worked at a credit union, and suffered an on-the-job injury in 1997 (Note: during the Bubba Administration). She filed a claim for benefits, pointing to injuries to her “neck, back, left side, knee, head, arm, and shoulder.” Settlement talks were apparently fruitful (ahem – bad pun obviously intended), and she and the credit union signed a memorandum of agreement form. But in filling out the form, she listed the parts of her body injured as only “Cervical and dorsal strains; left arm and hand injury.” The commission made an award based on the agreement.

The matter lay dormant for a decade until 2008 (Dubya Administration), when out of the blue, Jones filed a claim for benefits based on her old knee injury. She pointed out that she had timely notified her employer of the knee injury, and that her claim for those benefits had never been adjudicated. The commission, unimpressed with her creativity, found that the old knee claim had been abandoned, and that this one was way too late.

Today (Obama Administration), the Court of Appeals affirms, specifically confirming the commission’s line of cases holding that it “does not adjudicate cases piecemeal.” The commission was entitled to regard the old claim as having been abandoned, instead of lying dormant but still viable like those old date seeds. Today’s opinion is published apparently because the CAV had not previously affirmed that basic doctrine of jurisprudence in a Comp case.

Criminal law
The heading for this section is a bit misleading. One significant aspect of Settle v. Commonwealth is the question of whether an order of forfeiture of dangerous dogs is civil or criminal in nature. As my readers know well, the sharply-limited jurisdiction of the Court of Appeals doesn’t extend to most civil litigation. But when Settle appealed his emphatically-criminal convictions for inadequate care of companion animals and for having a dog at large, it was only natural that he’d throw into the same appeal a question relating to the propriety of the trial court’s forfeiture order. After all, the forfeiture irrevocably sprung from the convictions, right?

Well, no. It’s true that the underlying facts were likely the same, or at least that there was a major degree of overlap. But as the CAV confirms today, forfeitures are civil, and so this part of the appeal gets transferred to the Supreme Court.

Believe it or not, that’s the only part of today’s decision that goes right for poor Settle. He loses his dog-at-large appeal on a technicality, since he neglected to name the county as an appellee. Since this offense arose under a county ordinance, that makes the county a necessary party. The other question he appealed was a sufficiency challenge, and that one bears describing.

Is a criminal defendant entitled to require that at least one prosecution witness make an in-court identification of the defendant as the perpetrator? Candidly, I’m not sure; I have never researched the point, and I’ve heard opinions on both sides of this question. In this trial, there was never a bold J’Accuse! moment where a witness pointed at the defendant and said, “There he is; he’s the Bad Guy.” But when the defense raised this issue in a post-trial motion, the trial court noted that each of four law-enforcement officers who testified had looked at Settle and made “a head nodding” motion. That, the appellate court rules today, is enough of an in-court identification to establish the sufficiency of the evidence that Settle – or at least the guy who sat at Settle’s spot at the counsel table – was the dog-owner.